Lee v. State, 24142.
| Decision Date | 10 November 1948 |
| Docket Number | No. 24142.,24142. |
| Citation | 214 S.W.2d 619 |
| Parties | LEE v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Bowie County; E. Harold Beck, Judge.
Charlie Lee was convicted of murder, and he appeals.
Reversed.
Connor Patman, Norman Russell, and Robert L. Dalby, all of Texarkana, for appellant.
Ernest S. Goens, State's Atty., of Austin, for the State.
The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of 99 years.
The record reflects that Andrew Hill, S. T. Hubbard, Joe Johnson, and appellant were jointly indicted for the murder of R. F. Talley. A severance was granted and the defendants agreed upon the order in which they were to be tried. It was agreed that Andrew Hill be tried first, Joe Johnson next, and then appellant. When the case of the State against Joe Johnson was called for trial, the state moved to dismiss the case against him. The motion was sustained, the case was dismissed, and then appellant was placed on trial, found guilty, and his punishment was assessed as above stated. Appellant challenges the sufficiency of the evidence to sustain his conviction.
The facts necessary for an understanding of the law of this case are substantially as follows: On Saturday night, November 8, 1947, R. F. Talley and W. C. Shipp, a deputy constable of Precinct No. 6 in and for Bowie County, were riding around over the precinct when they noticed an automobile on the highway without a tail light. They stopped the automobile which was occupied by several negroes and told the driver that he would have to get some lights. He promised to do so at the next filling station which was a short distance ahead. While the constable was talking to these negroes another automobile came along upon the highway and stopped some 75 or 100 feet in front of the officers' car. This second car was also occupied by negroes, who got out and came down to the other car to ascertain the trouble, if any.
The constable inquired of Fletcher Davis, the driver of the second car, if he had a drivers license to which Davis replied that he had a permit which, however, proved to be a permit issued to him in the State of California. The officer started to take him to the office of the justice of the peace in Mr. Talley's automobile, whereupon, Davis inquired if they were going to leave his automobile parked on the highway and have someone strip his car of tires, etc. The constable suggested to Davis that they go in his, Davis', car. They did this and then Mr. Talley inquired of the other parties if they desired to go to the office of the justice of the peace. If so, they may get into his car and he would carry them there. It appears from the record that Andrew Hill and S. T. Hubbard got in the front seat with Mr. Talley and the defendant and Joe Johnson got in the rear seat. Before Mr. Talley started his car, Andrew Hill, who was sitting next to Mr. Talley on the front seat, grabbed Mr. Talley's pistol and shot him in the abdomen. When the first shot was fired, appellant, Joe Johnson, and S. T. Hubbard jumped out of the car and ran a short distance from the car, then Andrew Hill fired the second shot which struck Talley in the head. After the second shot had been fired, Andrew Hill came to where the other negroes were with a pistol which later proved to be Mr. Talley's. They then left the scene of the difficulty and went home. Later in the night Mr. Talley was discovered sitting in his car mortally wounded. He was carried to a hospital where he died something like twenty-four hours later. All four of the negroes were arrested the next morning and placed in jail.
It was the state's contention that appellant was a principal in the killing of Talley on the theory that he held the deceased while Andrew Hill took the pistol from Talley. Our statute provides that all persons are principals who are guilty of acting together in the commission of an offense; that when an offense is actually committed by one or more persons, but others are present and, knowing the illegal intent, aid by acts or encourage by words or gestures those actually...
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